Most of us understand, at least generally, that for material to be considered by a trial judge in the course of a hearing it must comply with the ‘rules of evidence’. Both under the common law and under both the NSW and Commonwealth Evidence Acts, one class of material that can generally be given in evidence is ‘business records’. The broad theory behind this is that businesses will generally maintain accurate records of how they have been conducted (for example as to who their customers are, what revenues they generate, how they carry out production etc) and that their historical records are therefore generally reliable material for the purpose of a court making decisions.

However when the ‘record’ is in the nature of advertising or promotional material, while it is certainly a document created by a business, the courts tend to be much more cautious as to whether these are ‘business records’ in the relevant sense. The distinction seems to be whether documents are records of a business; or the product of it. Consequently in recent times the courts have rejected attempts to tender, as business records, both corporate magazines (Australian Competition and Consumer Commission v Air New Zealand Limited (No. 5) [2012] FCA 1479 and extracts from a company’s web page (Clipsal Australia Pty Limited v Clipso Electrical Pty Limited (No. 43) [2017] FCA 60).

Those cases were about quite different types of disputes, but the significance of the rulings is that litigants seeking to prove their case, or part of it, on the basis of business records need to carefully consider whether the material they wish to rely on is a ‘record’ of’ the business (in which case it probably can be used in evidence) or a ‘product’ of the business (in which case it probably cannot).